DUI
DUI: What is it and how can it affect me?
DUI stands for Driving Under the Influence and can be classified as either a felony or a misdemeanor. Many people receive DUIs. It is a crime that cuts across all social, ethnic, economic and age boundaries. You don't have to be a drunk or an alcoholic to be cited for a DUI. In fact, you don’t even have to have been drinking to get a DUI. Many people are cited, and convicted, for DUI with only prescription medications or illegal drugs.
DUI is a crime that costs society a great deal both in economic terms and loss of life. As a result of that, Arizona has very strict penalties for DUI including mandatory jail time for first time offenses. Groups such as Mothers Against Drunk Drivers (MADD) and Students Against Destructive Decisions (SADD) have been active in the political arena and have shaped a large part of DUI law. The laws and methods of DUI detection in Arizona are some of the most sophisticated in the country.
Federal grant money and state funding have played a large part in enforcement and refinement of the laws. Breath, blood, and urine testing have changed dramatically over the past few years. The advent of workplace testing has provided manufacturers of testing equipment with more incentive to make increasingly accurate and foolproof equipment. As a result of all of this attention, DUI has become a specialized area of the criminal defense world.
A conviction for DUI can mean mandatory jail time, hundreds of dollars in fines, increased insurance rates, and loss of your driver's license. It is a criminal offense that will result in a permanent criminal record. It is certainly an offense that is worth fighting.
For the complete, current and DUI statutes and punishment, click on the following link; www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=28, then look up the individual statute designation, described below:
Elements of DUI in Arizona
DUI A.R.S.§28-1381(A)(1)
In order to prove you guilty for violation of the (A)(1) charge (commonly referred to as the "DUI Charge"), the State must prove all three of the following elements, each beyond a reasonable doubt:
- That you were driving, or were in actual physical control of a motor vehicle within this state, and;
- that you were under the influence of alcohol or drugs or any combination of the two, and;
- that you were impaired to the slightest degree.
If the State proves each one of the above to a jury beyond a reasonable doubt, you will be convicted. If they fail on any one, you will be acquitted (found "Not Guilty").
One important thing to notice about the (A)(1) charge is that there is no mention of a breath or blood test. Although it is relevant, the state does not need to produce evidence of one in order to take you to trial or prove you guilty. Instead, the state will rely on the results of the Field Sobriety Tests (walking a straight line, standing on one leg, reciting the alphabet, etc.) if such tests were given and are admitted as evidence against you. They will also use observations of the officers involved such as; red, watery, bloodshot eyes, odor of alcohol, stumbling, swaying, etc.
Additionally, they will use any admissions made by you. So, if you told the officer you had a couple of beers, or that you felt drunk, you can expect the officer to repeat those statements in court.
DUI A.R.S. §28-1381(A)(2)
In order to prove you guilty for violation of the (A)(2) charge (commonly referred to as the "BAC Charge"), the State must prove all three of the following elements, each beyond a reasonable doubt:
- That you were driving, or were in actual physical control of a motor vehicle within this state, and;
- that you had a Blood or Breath Alcohol Content of 0.080 or more within two hours of driving, and;
- that your Blood or Breath Alcohol Content resulted from alcohol consumed prior to or while driving (not after).
If the State proves each one of the above to a jury beyond a reasonable doubt, they will get a conviction. If they fail on any one, there will be an acquittal.
NOTE: If you refuse to submit to a breath, blood, or urine test, the police almost always apply to a judge for a Telephonic Search Warrant to draw blood from you. The requests for warrants are usually granted. There have been many cases where suspects have been forcibly restrained and injured while blood was drawn by the police.
DUI A.R.S. §28-1382(A)(1) "Extreme DUI"
In order to prove you guilty for violation of A.R.S.§28-1382 (commonly referred to as an "Extreme DUI"), the State must prove all three of the following elements, each beyond a reasonable doubt:
- That you were driving, or were in actual physical control of a motor vehicle within this state, and;
- that you had a Blood or Breath Alcohol Content of 0.150 or more, but less than 0.200 within two hours of driving, and;
- that your Blood or Breath Alcohol Content resulted from alcohol consumed prior to or while driving (not after).
If the State proves each one of the above to a jury beyond a reasonable doubt, they will get a conviction. If they fail on any one, there will be an acquittal.
DUI A.R.S. §28-1382(A)(2) "Super Extreme DUI"
In order to prove you guilty for violation of A.R.S.§28-1382 (commonly referred to as a "Super Extreme DUI"), the State must prove all three of the following elements, each beyond a reasonable doubt:
- That you were driving, or were in actual physical control of a motor vehicle within this state, and;
- that you had a Blood or Breath Alcohol Content of 0.200 or more within two hours of driving, and;
- that your Blood or Breath Alcohol Content resulted from alcohol consumed prior to or while driving (not after).
If the State proves each one of the above to a jury beyond a reasonable doubt, they will get a conviction. If they fail on any one, there will be an acquittal.
AGGRAVATED (Felony) DUI A.R.S. §28-1383
The state must prove any of the above misdemeanor DUI charges plus one or more of three additional elements:
- It is your third DUI within 84 months (7 years). The time period is measured from date of incident to date of incident, not from the time of conviction. In a typical second-time DUI (which is usually a misdemeanor), a jury is not informed that you have a prior conviction because it is too prejudicial. However, in an aggravated DUI with two prior offenses, the fact that you have two prior offenses is an element of the crime, thus the jury must be informed that you have two prior DUI convictions. The prior offenses element makes this type of aggravated DUI very difficult to win and makes fighting the case with pre-trial motions all the more important.
- You received your DUI while on a driver's license that was restricted, suspended, canceled, revoked or refused. Generally, an attorney can prevent a jury from being informed that the license-defect is due to a prior DUI, if that is the case.
- You received your DUI while you had a child under the age of 15 in the car with you. You are likely to be charged with Child Abuse or Child Endangerment as well.
Aggravated DUI with prior offense or invalid license are Class IV Felonies. DUI with a child in the car is a Class VI Felony.
There are many "companion" charges that can be charged along with an aggravated DUI such as child abuse, endangerment, aggravated assault with a deadly weapon. Whether you are charged with one of these companion charges or not will depend on the individual circumstances of your arrest.
MVD LICENSE SUSPENSION
By obtaining an Arizona Driver's License or by simply driving within this state, we have agreed that if arrested by an officer we will submit to a breath, blood, or urine test without a search warrant. The officer must advise you of this fact and the consequences of failure of the test and of refusing to take such a test. Typically, the officer will read to you an “Arizona Implied Consent/Admin Per Se” form which contains this information prior to asking you if you will submit to the specified test(s). In Arizona, it is the police officer who chooses what type of test(s) you will have to submit to, as opposed to some other states where it is the motorist's choice.
If you are cited for DUI and you took a breath or blood test which showed a BAC of 0.080 or more, MVD will attempt to suspend your license pursuant to A.R.S.§28-1385 for 90 days. If you refused to take the test, MVD will attempt to suspend your license for one year under A.R.S.§28-1321 (irrespective of whether they drew blood after the police had obtained a search warrant). In either event, to have any chance of retaining your license, you must petition the Motor Vehicle Division to challenge the suspension within 15 days of the Notice of Suspension.
A. A.R.S. §28-1321 (Implied Consent--Refusal) If you have refused the chemical test and the police take your license away, there are two options available:
- MVD License Revocation Hearing. An MVD License Revocation Hearing may be held at the petitioner's request to determine whether the officer had requested that you submit to a designated test and whether you refused to submit to the test.
- Default. You can simply choose to let MVD suspend your license without a Hearing. The suspension takes place 15 days after you were notified of the impending suspension and lasts for one year. There is no provision for a restricted license or work permit.
B. A.R.S. §28-1385 (Administrative Per Se Suspension) If you have taken a test and are over the limit there are three options available:
- MVD License Revocation Hearing. An MVD License Revocation Hearing may be held at the petitioner's request to determine whether the officer had reasonable grounds to believe that you were driving a vehicle within Arizona while under the influence of alcohol or drugs, and whether you had a Blood or Breath Alcohol Content of 0.80 or more.
- Summary Review. A Summary Review does not involve a hearing. A Summary Review is a petition which asks an MVD Administrative Hearing Officer to review the Implied Consent Affidavit from your case and to determine whether it is valid on its face. If the determination is that the Affidavit is facially invalid, your license will be returned to you and the order of suspension will be void. If the Hearing Officer determines that the Affidavit is facially valid, your license will be suspended without a hearing. The advantage to a Summary Review over a Hearing is that the police cannot cure a defect found on the face of the Affidavit as they could if an MVD License Revocation Hearing were to be held. [A Summary Review is not available for a suspension under §28-1321 (Refusal).]
- Default. You can simply choose to let MVD suspend your license without a Hearing or Review. The suspension takes place 15 days after you were notified of the impending suspension. You may be eligible for a restricted license after 30 days.
Note that if this is not your first suspension, additional suspension time may be mandatory.
PUNISHMENT UPON CONVICTION
A. Misdemeanors
DUI punishment, where there is a conviction, is dependent upon when you were cited for the DUI. Laws have changed significantly over the past few years and people arrested for DUI yesterday may face a different punishment than those arrested tomorrow.
Prior convictions and the reported Blood or Breath Alcohol Content also play a significant role in the mandatory minimum punishment.
Keep in mind that all Misdemeanor DUI Convictions require the following:
Mandatory County Jail Time
Mandatory Fines
Mandatory Surcharges on the Mandatory Fines
Mandatory Ignition Interlock Device
Mandatory License Suspension
Mandatory Substance-Abuse Treatment
A prior offense within 84 months will also require:
Longer Mandatory County Jail Time
Higher Mandatory Fines
Higher Mandatory Surcharges on the Mandatory Fines
Longer Mandatory License Suspension
Community Service
Additionally, the judge may order community service, probation and attendance of the MADD Victim Impact Panel with any misdemeanor DUI.
B. Felony or Aggravated DUI
The potential maximum penalty varies as to which class of felony is charged, whether you have prior offenses, and whether there are any companion charges.
Keep in mind that all Aggravated (Felony) DUI Convictions require the following:
Mandatory State Prison Time (not County Jail)
Mandatory Fines
Mandatory Surcharges on the Mandatory Fines
Mandatory Ignition Interlock Device
Mandatory License Revocation (at least 3 years)
Contact Us
If you need qualified legal representation in connection with any of the criminal charges discussed above, contact Nesci & St. Louis, P.L.L.C. today at 520.777.0235 for a free initial consultation.
